Historical Development and Codification of the Law of the Sea

This Article explains the Historical Development and Codification of the Law of the Sea in International Law

Law of the Sea in Ancient Era:

• In the 7th century, the “Lex Rhodia,” also known as the “Rhodian Sea Law,” was drafted. It governed commercial trade and navigation in the Byzantine Empire and had named after the independent kingdom of Rhodes in the Mediterranean Sea.

Claims to Maritime Sovereignty:

• During the 15th and 16th centuries, powerful maritime states made numerous claims to exercise sovereignty over specific portions of the open sea.
• Portugal claimed sovereignty over the Indian Ocean and the Atlantic Ocean south of Morocco.
• Spain claimed sovereignty over the Pacific Ocean and the Gulf of Mexico.
• Great Britain claimed sovereignty over the Narrow Seas, the North Sea, and also the Atlantic Ocean from the North Cape to Cape Finisterre.
• Sweden and Denmark claimed sovereignty over the Baltic Sea.
• Moreover, these claims involved requiring navigating vessels to honor the flag of the claiming state as a symbol of recognition of its sovereignty, levying tolls from foreign ships, and controlling foreign navigation and fisheries.

Freedom of the Seas:

• In 1609, Hugo Grotius, considered the father of International Law, opposed extensive claims of maritime sovereignty in his treatise “Mare Liberum” (The Freedom of the Seas).
• Grotius also argued that no nation could possess the ocean through occupation, making the sea inherently free from the sovereignty of any state.
• He further asserted that nature did not grant anyone the right to appropriate things that could be used by everyone, including the open sea.
• The principle of “freedom of the high seas” began to develop as conflicting claims to the same parts of the open sea proved inconvenient for all states.
• The Treaty of Westphalia in 1648 also played a role in shaping the concept of maritime sovereignty.

Important Court Cases:

• The Paquete Habana Case (1899): The US Supreme Court considered the capture of small coastal fishing vessels flying the flag of an enemy state. Moreover, the majority of the Court recognized an exemption for small coastal fishing vessels from capture as prize.
• The SS Lotus Case (France vs. Turkey) (1927): The majority of the Permanent Court of International Justice denied the existence of a principle of international law prohibiting Turkey from prosecuting the captain of a French vessel involved in a collision on the high seas.

Codification of the Law of the Sea:

• The First United Nations Conference on the Law of the Sea in 1958 successfully codified the Law of the Sea.
• The conference adopted four conventions: Territorial Sea and the Contiguous Zone, Continental Shelf, High Seas, and Fishing and the Conservation of the Living Resources of the High Seas.
• The conference left unresolved issues such as fishery limits and the breadth of the territorial sea, leading to the Second United Nations Conference on the Law of the Sea in 1960.
• UNCLOS, 1982: After multiple sessions, the Third United Nations Conference on the Law of the Sea adopted the draft of the Convention on the Law of the Sea in 1982.
• The convention entered into force on November 16, 1994, and has been ratified by 167 states.

Importance and Criticisms:

• The Convention on the Law of the Sea is considered a major international agreement, with provisions that are binding on states as customary international law.
• The US has faced criticism for not ratifying UNCLOS, with arguments made that it undermines the US’s ability to call on other nations to resolve maritime disputes.
• The case concerning the Continental Shelf of Libyan Arab Jamhuriya/Malta (1985, ICJ) also acknowledged the importance of the 1982 Convention as a significant legal framework.